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303 K Street, Anchorage, Alaska 99501
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E-mail: corrections @ akcourts.gov
IN THE COURT OF APPEALS OF THE STATE OF ALASKA
DAVID ALAN LINDEN,
Court of Appeals No. A-13097
Appellant, Trial Court No. 3AN-17-00680 CR
v.
O P I N I O N
MUNICIPALITY OF ANCHORAGE,
Appellee. No. 2712 - November 5, 2021
Appeal from the District Court, Third Judicial District,
Anchorage, Brian K. Clark, Judge.
Appearances: Matthew A. Michalski, Attorney at Law,
Anchorage, for the Appellant. Sarah E. Stanley, Municipal
Prosecutor, and Kathryn R. Vogel, Municipal Attorney,
Anchorage, for the Appellee.
Before: Allard, Chief Judge, and Wollenberg and Harbison,
Judges.
Judge WOLLENBERG.
----------------------- Page 2-----------------------
David Alan Linden assaulted his girlfriend in the presence of their nine-
month-old child. Based on this incident, a jury found Linden guilty of both assault and
1
family violence under the Anchorage Municipal Code, but acquitted him of child abuse.
At trial, Linden's girlfriend, Mary Otton, testified that she saw Linden slap
their infant son, wrap him in a blanket from head-to-toe, and place him in a plastic
storage container before attempting to cover the container with a lid. When Otton tried
to intervene, Linden held her down and punched her. According to Otton, during the
ensuing altercation, Linden tore off Otton's shirt and struck her twice in the head and
several times in the lower back, causing injuries which required later medical treatment.
The altercation started in the bedroom of their shared apartment, where the child was
present, and then continued into the living room and outside of the building when Otton
tried to escape.
Following the verdicts, Linden argued that, under the double jeopardy
clauses of both the Alaska and United States Constitutions,thedistrictcourt was required
2
to merge the guilty verdicts for assault and family violence into a single conviction. The
court disagreed, ruling that the crime of family violence protected a societal interest
distinct from assault and that, under the facts of this case, the crime of family violence
had a different victim, the child. The court therefore entered separate convictions for
assault and family violence.
Linden now appeals. We conclude that Linden properly received separate
convictions for assault and family violence, and we therefore affirm.
1 Anchorage Municipal Code (AMC) 08.10.010(B)(1) and AMC 08.10.050(B),
respectively. The jury also found Linden guilty of tampering with official proceedings under
AMC 08.30.080(A)(3), but this conviction is not implicated by Linden's appeal.
2 U.S. Const. amend. V; Alaska Const. art. I, § 9.
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Our analysis of Linden's claim
Under both the United States and the Alaska Constitutions, a person may
3
not be twice put in jeopardy "for the same offense."
This prohibition protects not only
against successive prosecutions for the "same offense" following a conviction or an
acquittal, but also against multiple convictions and punishments for charges that amount
4
to the "same offense" within a single prosecution. The question presented in this appeal
is whether the Anchorage municipal crimes of family violence and assault constitute the
"same offense" for purposes of the prohibition on imposing multiplepunishments within
a single prosecution.
Under the Anchorage Municipal Code, "[a] person commits the crime of
family violence when the person commits the crime of assault . . . with knowledge or
5
A person commits the crime
reckless disregard of the presence of a child or children."
of assault, in relevant part, when the person "recklessly causes physical injury to another
person."6
Based on these provisions in the code, it is impossible to commit the crime
of family violence without also committing the crime of assault. Given this relationship
3 U.S. Const. amend. V ("No person shall . . . be subject for the same offense to be
twice put in jeopardy of life or limb[.]"); Alaska Const. art. I, § 9 ("No person shall be put
in jeopardy twice for the same offense."). The double jeopardy clause of the Fifth
Amendment is applicable to the states through the Fourteenth Amendment. See Benton v.
Maryland , 395 U.S. 784 (1969).
4 See North Carolina v. Pearce, 395 U.S. 711, 717 (1969); Todd v. State, 917 P.2d 674,
677, 681 (Alaska 1996).
5 AMC 08.10.050(B). For purposes of the offense of family violence, "presence of a
child or children" is defined as "when a child or children are in the dwelling, vehicle, or other
place where the assault has occurred." AMC 08.10.050(c).
6 AMC 08.10.010(B)(1).
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between the offenses, Linden argues that assault is a lesser included offense of family
violence and that his convictions for assault and family violence must therefore merge.
But the relationship between the elements of the two offenses does not
7
alone answer the question of whether the offenses merge. We therefore turn to the
analysis of Linden's claim under both state and federal double jeopardy law.
Do the offenses merge under Alaska double jeopardy law?
TheAlaskaSupremeCourt'sdecision in Whittonv.State is theseminal case
on the doctrine of merger - i.e., whether two crimes that violate separate statutes and
are charged in a single prosecution constitute a single offense for double jeopardy
8
purposes under the Alaska Constitution.
Under the Whitton test, a court must compare the different statutory
provisions, as applied to the facts of the case, and evaluate any differences in intent or
9
If the differences in intent or
conduct in light of the societal interests to be vindicated.
conduct are "insignificant or insubstantial" in relation to the societal interests, the court
10
may only enter a single conviction and sentence.
"The social interests to be considered
. . . include the nature of personal, property or other rights sought to be protected, and
the broad objectives of criminal law such as punishment of the criminal for his crime,
11
rehabilitation of the criminal, and the prevention of future crimes."
7 See Todd, 917 P.2d at 677, 681.
8 Whitton v. State, 479 P.2d 302, 312 (Alaska 1970).
9 Id.
10 Id. at 312; see also Rofkar v. State, 273 P.3d 1140, 1143 (Alaska 2012).
11 Whitton, 479 P.2d at 312.
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The supreme court's decision in Tuckfield v. State provides the strongest
support for Linden's position that his two convictions must merge. 12
In Tuckfield, the
supreme court stated, "It is well settled that double jeopardy is violated by conviction of
both an offense and a lesser included offense, unless those convictions arise from
13
The court characterized the "governing principle" for determining
separate conduct."
whether one offense is a lesser included offense of another as "whether the facts in
evidence demonstrate one could have committed the greater offense without also having
14
committed the offense of lesser magnitude."
Based solely on Tuckfield, one could argue that Linden's convictions
should merge. But the supreme court has subsequently recognized that Whitton sets out
"the sole test for multiple punishment of the same offense under the Alaska
15
Constitution." The court has also clarified that, under Whitton, a single act can
16
potentially result in multiple convictions.
12 Tuckfield v. State, 621 P.2d 1350, 1352-53 (Alaska 1981).
13 Id. at 1352.
14 Id.
15 Johnson v. State , 328 P.3d 77, 88 & nn.63-64 (Alaska 2014); see also Todd v. State,
917 P.2d 674, 681-83 (Alaska 1996) (recognizing that "Whitton is the seminal case and still
controlling precedent in this area of law").
16 See State v. Dunlop, 721 P.2d 604, 607-09 (Alaska 1986). The supreme court has
disavowed any suggestion in its caselaw that the Whitton test does not apply when one statute
has been violated by a single course of conduct resulting in multiple injuries or deaths.
Johnson , 328 P.3d at 88 n.63 (discussing Rofkar v. State , 273 P.3d 1140, 1143 (Alaska
2012)). Rather, the supreme court has said, "the Whitton test applies equally well in cases
of multiple statutes, multiple counts of violating a single statute, and multiple victims or lone
victims." Id.
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In Todd v. State, decided fifteen years a fter Tuckfield, the supreme court
declined to follow a strict interpretation of Tuckfield and declared that "Whitton is the
seminal case and still controlling precedent in this area of law."17
The defendants in
Todd were convicted of both felony murder (with robbery as the predicate felony) and
18
robbery. The supreme court acknowledged that a defendant cannot be convicted of
felony murder with robbery as a predicate without also having been convicted of
19
robbery. But the court nevertheless concluded that robbery was not a lesser included
offense of felony murder. The court reached its conclusion, in part, by considering the
legislative intent behind the felony murder statute, explaining, "The felony-murder
provision does not overlap with other offenses but rather enhances them, and . . . the
intent of the legislature to allow multiple punishments is clear."20
The supreme court has also applied Whitton in concluding that a defendant
who injures multiple people through a single act commits a separate offense as to each
victim. Initially, in Thessen v. State, the court held that only a single conviction should
enter when, through a single act without intent to harm multiple victims, the defendant
21
injures multiple people.
But in State v. Dunlop, the court overruled Thessen,
explaining, "Instead of focusing on the accused's intent we must look at the
consequences. Where an act of violence injures multiple victims, there are as many
17 Todd, 917 P.2d at 681-83.
18 Id. at 676.
19 Id. at 682.
20 Id.
21 Thessen v. State, 508 P.2d 1192, 1195 (Alaska 1973), overruled by State v. Dunlop,
721 P.2d 604 (Alaska 1986).
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----------------------- Page 7-----------------------
22
punishable offenses as there are victims." Accordingly, under Dunlop, "[t]he identity
of the victim represents different conduct - it represents conduct directed at that
victim," and entry of conviction for each victim is appropriate.23
Under Whitton - as interpreted and applied in Todd and Dunlop - we
must look to the legislative history of the family violence ordinance, as well as the
identified harm of Linden's actions in light of the intent and conduct encompassed by the
law's provisions, in order to determine how many offenses occurred.
24
The Anchorage Assembly created the crime of family violence in 2000.
The new crime was part of a package of offenses aimed specifically at redrafting the
25
child abuse ordinances. Other offenses enacted or amended by the same ordinance
26 27
child neglect, and contributing to the delinquency
included the offense of child abuse,
28
of a minor.
22 Dunlop, 721 P.2d at 609 (emphasis in original).
23 Id. In Dunlop, the supreme court initially disclaimed its reliance on Whitton. Id. at
608 n.17; see also Rofkar v. State, 273 P.3d 1140, 1143 (Alaska 2012) ("Dunlop clarified that
the Whitton test does not apply where one statute has been violated by a single course of
conduct that results in multiple deaths or injuries[.]"). But in Johnson v. State , the supreme
court described Dunlop as an application of the Whitton test and "disavow[ed] the dicta in
Rofkar that indicates that different tests for multiple punishment apply in different contexts."
Johnson v. State , 328 P.3d 77, 88 & n.63 (Alaska 2014).
24 Anchorage Ordinance (AO) No. 2000-95, § 5 (July 18, 2000).
25 Id. ; Municipality of Anchorage, Assembly Memorandum No. AM 565-2000, AO
2000-95; Revisions to Title 8 (May 23, 2000).
26 AMC 08.10.030 (repealed and reenacted).
27 AMC 08.10.040.
28 AMC 08.10.060; see AO No. 2000-95 at §§ 1, 4, 6.
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An Assembly Memorandum prepared for the meeting at which the
ordinance was first introduced explained that each new section criminalizing conduct
involving a child was "aimed at a specific type of harm":
The original code section [criminalizing child abuse] is
repealed and four new sections, each aimed at a specific type
of harm, are enacted. The changes are designed to provide a
comprehensive enforcement tool that reflects increased
awareness of the problems and seeks to more accurately
address the distinctions between physical abuse, physical
neglect, and other harms which may occur. [29]
This memorandum, and thehistoricalcontext fortheenactment ofthecrime
of family violence, demonstrate that the Anchorage Assembly made a legislative
determination that the conduct constituting family violence - assault in the presence of
a child - constitutes a distinctly separate harm against a child, one which the current
assault offense did not sufficiently vindicate (at least when the child was not the victim
of the assault).
This conclusionisfurthersupportedbytheAnchorageAssembly's decision
to make both assault and family violence class A misdemeanors, and to set out both as
punishable under AMC 08.05.020(H)(1), with no additional minimum penalty that
30
otherwise distinguishes the offenses. If the new crime of family violence were intended
to overlap with assault, rather than enhance it, then the entire crime of family violence
29 Assembly Memorandum No. AM 565-2000, at 1.
30 See AMC 08.10.010(E); AMC 08.10.050(D); AMC 08.05.025.
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31
would be surplusage. The Assembly must therefore have intended for separate
convictions when the assault and family violence resulted in separate injuries. 32
Here, Lindencaused injurytohis girlfriendby assaulting her, and hecaused
injury to his child by committing the assault in the presence of his child. In essence,
under the facts of this case, the two crimes had separate victims and thus constituted
separate offenses.
Wethereforeconcludethat, under the facts of this case, thedoublejeopardy
clause of the Alaska Constitution does not require merger of Linden's convictions for
assault and family violence.
Do the offenses merge under federal double jeopardy law?
In Blockburger v. United States, the United States Supreme Court
announced a test for determining whether two statutory provisions constitute the "same
offense" under the federal constitution: "The applicable rule is that, where the same act
or transaction constitutes a violation of two distinct statutory provisions, the test to be
31 See Lampkin v. State, 141 P.3d 362, 364 (Alaska App. 2006) (recognizing that if the
crime of promoting contraband merged with the crime of fourth-degree controlled substance
misconduct - both class C felonies - the practical effect would be that prisoners would
face no greater punishment for possessing the drugs in jail than if they had possessed the
drugs elsewhere).
32 See Todd v. State, 917 P.2d 674, 682 (Alaska 1996) ("The felony-murder provision
does not overlap with other offenses but rather enhances them, and, as we noted above, the
intent of the legislature to allow multiple punishments is clear."); see also Kodiak Island
Borough v. Roe, 63 P.3d 1009, 1014 n.16 (Alaska 2003) ("We assume that words added to
a statute are not mere surplusage.").
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----------------------- Page 10-----------------------
applied to determine whether there are two offenses or only one, is whether each
33
provision requires proof of a fact which the other does not."
In subsequent cases, however, the Supreme Court has clarified that, in the
context of multiple punishments arising from a single prosecution - i.e., in the merger
context - the role of the double jeopardy clause of the federal constitution is limited to
34
protecting adefendant against receiving morepunishment than thelegislatureintended.
Thus, in the single-prosecution context, the Supreme Court has treated the Blockburger
test as a tool of statutory interpretation - i.e., a tool for determining, presumptively,
whether the legislature intended to preclude separate conviction and punishment for two
offenses.35
33 Blockburger v. United States, 284 U.S. 299, 304 (1932).
34 See, e.g., Garrett v. United States, 471 U.S. 773, 779 (1985) ("Insofar as the question
is one of legislative intent, the Blockburger presumption must of course yield to a plainly
expressed contrary view on the part of Congress."); Missouri v. Hunter , 459 U.S. 359, 368-
69 (1983) ("Where . . . a legislature specifically authorizes cumulative punishment under two
statutes, regardless of whether those two statutes proscribe the 'same' conduct under
Blockburger, a court's task of statutory construction is at an end and the prosecutor may seek
and the trial court or jury may impose cumulative punishment under such statutes in a single
trial."); Albernaz v. United States , 450 U.S. 333, 340 (1981) ("The Blockburger test . . .
should not be controlling where, for example, there is a clear indication of contrary
legislative intent."); see also Todd , 917 P.2d at 677 ("Any indication the Court once may
have given that Blockburger provided a unitary test for determining whether offenses were
the same and whether the Double Jeopardy Clause was violated has since been disavowed.").
35 Albernaz , 450 U.S. at 340 ("The Blockburger test is a 'rule of statutory construction,'
and because it serves as a means of discerning congressional purpose the rule should not be
controlling where, for example, there is a clear indication of contrary legislative intent."); see
also Ball v. United States, 470 U.S. 856, 861 (1985) ("For purposes of applying the
Blockburger test in this setting as a means of ascertaining congressional intent, 'punishment'
must be the equivalent of a criminal conviction and not simply the imposition of sentence.").
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If the offenses fail the Blockburger test - i.e., if only one of the offenses
contains an element that the other does not -then multiple punishments and convictions
36
are presumptively barred.
But this presumption is rebuttable by clear legislative intent
to authorize separate punishments: "where two statutory provisions proscribe the 'same
offense,' they are construed not to authorize cumulative punishments in the absence of
37
a clear indication of contrary legislative intent." In other words, "the Blockburger rule
is not controlling when the legislative intent is clear from the face of the statute or the
38
legislative history."
The crimes of assault and family violence constitute the "same offense"
under the Blockburger test: the crime of assault does not require proof of a fact that the
crime of family violence does not also require. But, for the reasons we have already
discussed, both the statutory context and legislative history of the family violence
ordinance demonstrate a clear legislative intent to allow multiple punishments and
convictions under Alaska law. The Assembly Memorandumexpressly indicated that the
family violence ordinance was aimed at "a specific type of harm" - i.e., a "different
societal interest" for purposes of Whitton. And the enactment of a new crime, with an
equivalent penalty, demonstrates an intent that the offense of family violence would not
generally merge with the underlying assault.
36 Todd, 917 P.2d at 678 (citing Whalen v. United States, 445 U.S. 684, 691-92 (1980)).
37 Whalen, 445 U.S. at 692.
38 Garrett, 471 U.S. at 779; Hunter, 459 U.S. at 368-69; see also Starkweather v. State,
244 P.3d 522, 529 (Alaska App. 2010) ("[U]nder the federal double jeopardy test, the
question of whether the law permits separate convictions and punishments is answered by
ascertaining whether the legislature intended to allow separate convictions and
punishments.").
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Because the Assembly intended to allow multiple punishments under the
39
applicable state law, the federal double jeopardy rule is satisfied.
We therefore
conclude that the double jeopardy clause of the United States Constitution does not
40
require merger of Linden's convictions for assault and family violence.
Conclusion
The judgment of the district court is AFFIRMED.
39 Hunter, 459 U.S. at 368.
40 The fact that the two charges, when pursued in a single prosecution, do not merge
does not necessarily mean that the Municipality can pursue the two charges in successive
prosecutions. See 5 Wayne LaFave et al., Criminal Procedure § 17.4(b), at 87-107 (4th ed.
2015) (discussing the progression of federal case law regarding the double jeopardy clause
in the successive prosecution context); State v. Williams, 730 P.2d 806, 806-07 (Alaska 1987)
(concluding that separate prosecutions for two offenses based on essentially the same
evidence violated the double jeopardy clause of the Alaska Constitution).
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